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Judgment
(PER : NANDESH S. DESHPANDE, J.)
Heard. Admit. Heard finally with the consent of learned Counsel for both the parties.
This is an application filed under Section 482 of the Criminal Procedure Code challenging the First Information Report bearing No. 0440/2019, for the offence punishable under Sections 406, 465, 468, 471, and 506 of the Indian Penal Code, and also prays for a quashing and setting aside RCC No. 2653/2024 pending before the Judicial Magistrate First Class, Nagpur.
As per the case of the First Information Report lodged by non-applicant No.2, he and the applicant herein are engaged in business relations, and on 19.01.2013, the applicant, on the pretext of traveling to Amravati, took away his Innova Car bearing Registration No. MH 31-EA-1314. It was decided at that time the applicant would return the said vehicle on the next day. However, when the vehicle was not returned for a considerable period, the non-applicant No. 2 inquired with the applicant, but the applicant abused him and plainly refused to return the said vehicle. Thereafter, the non-applicant No. 2 realized and got information under the RTI Act that the applicant had prepared forged and false documents evidencing that the non-applicant No.2 had sold the said vehicle to the applicant. It is on this allegation, the First Information Report was lodged with non-applicant No.2. The said First Information Report and the consequent criminal proceedings are challenged in the present application.
We have heard Shri Pratik Puri, learned Counsel for the applicant, Shri M.J. Khan, learned Additional Public Prosecutor, for the non-applicant No.1/ State, and Shri N.S.Khandewale, learned Counsel for non-applicant No.2.
Learned Counsel for the applicant submits that the allegations in the First Information Report, even taken in their entirety, do not constitute a prima facie case against the applicant, much less for offences punishable under the said First Information Report. He further states that the First Information Report is nothing but falsity documented, and the non-applicant No.2 has chosen to file the said First Information Report after a huge delay and without explaining the same. It is his further submission that the applicant had filed a suit for specific performance of contract against the non-applicant No.2 bearing Special Civil Suit No. 248/2019. Since, the non-applicant No.2 as also his members had committed a breach of agreement to sale. He also states that there is proceeding pending against the non-applicant No.2 regarding dishonor of cheques. He submits that since the non-applicant No.2 does not want to repay the loan advanced by the applicant, he has filed a false complaint to pressurize him. He, therefore, prays that the First Information Report and the consequent criminal proceedings be quashed.
Per contra, the learned Additional Public Prosecutor while opposing the contentions advanced by the learned Counsel for the applicant states that there are prima facie allegations against the applicant attracting offences punishable under Sections 406, 465 and 468 of the Indian Penal Code. He further submits that the applicant has unlawfully retained the Innova Car and has threatened the non-applicant No.2 that the same would not be returned till he gets back the alleged hand loan. He also submits that not only this, the applicant has prepared a forged document to make out a picture that the said vehicle in question is already sold to him. He, therefore, prays for a rejection of the application.
Learned Counsel for non-applicant No.2, while supporting the contentions advanced by the learned Additional Public Prosecutor, states that the application is devoid of merit and there is a prima facie case against the applicant. He further submits that the veracity of the allegations and the counter allegations would require a full-fledged criminal trial where the parties would be subjected to cross-examination. He, therefore, prays that the application is without merit and prays for its dismissal.
We have given thoughtful consideration to the contentions advanced by learned Counsel for the parties. Even as per the First Information Report, the incident of taking away the car in question is of 19.03.2013. While the First Information Report is lodged on 15.11.2019 i.e. more than after 6 years. No explanation for the huge delay of more than 6 years is mentioned in the First Information Report, except for the fact that the non-applicant No.2 was scared of the applicant, he being an anti-social element. Even though delay itself cannot be a ground to quash the First Information Report, however, the aspect of inordinate delay would certainly have a bearing to test the veracity of the allegations of the parties. Beneficial reference in this regard can be made to a judgment of Hasmukhlal D. Vora and another Vs. State of Tamilnadu, reported in (2022) 15 SCC 164, wherein the Hon’ble Apex Court in paragraphs 22, 23, 24 has observed as under:
“22.There has been a gap of more than four years between the initial investigation and the filing of the complaint, and even after lapse of substantial amount of time, no evidence has been provided to sustain the claims in the complaint. As held by this Court in Bijoy Singh v. State of Bihar, inordinate delay, if not reasonably explained, can be fatal to the case of the prosecution. The relevant extract from the judgment is extracted below: (SCC p. 153, para 7)
"7.Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the Court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. It is always for the prosecution to explain such a delay and if reasonable, plausible and sufficient explanation is tendered, no adverse inference can be drawn against it."
23.In the present case, the respondent has provided no explanation for the extraordinary delay of more than four years between the initial site inspection, the show-cause notice, and the complaint. In fact, the absence of such an explanation only prompts the Court to infer some sinister motive behind initiating the criminal proceedings.
24.While inordinate delay in itself may not be ground for quashing of a criminal complaint, in such cases, unexplained inordinate delay of such length must be taken into consideration as a very crucial factor as grounds for quashing a criminal complaint.”
We are also not oblivious of the fact that the First Information Report is not an encyclopedia of facts where all relevant averments have to be done, but that would not mean that the criminal proceedings can be initiated at any point of time, without explaining the delay, more particularly, when such a huge delay of more than 6 years is there. We are, therefore, of the opinion that the lodging of the First Information Report suffers from serious delay.
Furthermore, there is no material placed on record to allege that the applicant took steps for retaining the said vehicle, which was allegedly detained by the applicant. The document styled as Kararnama between the applicant and his wife on one side, and the mother and other family members of the non-applicant No.2 on the other side, gives credence to the story of the applicant that only to avoid repayment of the loan availed by him from the applicant, the non-applicant No.2 has lodged the criminal proceedings.
Furthermore, the sale letter/delivery form clearly states that it is the non-applicant No.2 who has sold the said vehicle to the applicant. Even though the documents have been disputed by the non-applicant No.2, there is no material to support the plea except for his bare say and his statement. Thus, in view of the fact that there is no material placed on record to support the allegations, which, apart from being highly delayed, do not have any supporting or corroborative material. It seems that the non-applicant No.2 is not in a position to repay the loan advanced by the applicant to him, and only to come out of the said situation, has chosen to initiate criminal proceedings. Making a person face a criminal trial and summoning him in a Criminal Court is a serious matter and, therefore, cannot be taken lightly as has been enunciated by the Hon’ble Supreme Court and this Court also time to time.
It would be, therefore, an abuse of the process of the Court to make the applicant to face the criminal trial. The situation would therefore squarely fall within the well laid down parameters in the judgment of State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335, has laid down broad guidelines for quashing a criminal complaint as under:
“102....
(1)Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2)Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4)Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6)Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
We are not oblivious of the fact that the power under Section 482 of the Criminal Procedure Code has to be issued sparingly and with great circumspection, but we cannot also lose sight of the fact that launching of criminal proceeding and that too at a belated stage cannot be a tool to harass a bona fide citizen. Thus, we pass the following order:
ORDER
The application is allowed.
ii) The First Information Report bearing No. 0440/2019, for the offence punishable under Sections 406, 465, 468, 471, and 506 of the Indian Penal Code, and also RCC No. 2653/2024 pending before the Judicial Magistrate First Class, Nagpur, is hereby quashed and set aside to the extent of the applicant – Rakesh S/o Wasudeorao Dekate.
The application is disposed of in above terms.